Elabbas v CTTT - [2007] NSWSC 878

CITATION: Elabbas v CTTT & Anor [2007] NSWSC 878

HEARING DATE(S): 2 August 2007

JUDGMENT DATE :
13 August 2007

JURISDICTION: Common Law Division - Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The orders of the Tribunal Member Jeffrey Smith dated 20 December 2006 are affirmed; (3) The further amended summons filed 2 August 2007 is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Appeal decision of CTTT - service of notice of termination

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ss 28, 33, 35, 36, 39, 53, 54, 65, 67
Housing Act 2001 (NSW)
Interpretation Act 1987 (NSW) - ss 33, 76
Residential Tenancies Act 1987 (NSW) - ss 64, 130
Residential Tenancies (Residential Premises) Regulation 1995 - Cl 25

CASES CITED: Chapman v Taylor, Vero Insurance Ltd v Taylor [2004] NSWCA 456
Glenn Nicholson v New South Wales Land and Housing Corporation also known as the Department of Housing, NSWSC, unreported, 24 December 1991
Italiano v Carbone & Ors [2005] NSWCA 177
Swain v Residential Tenancies Tribunal of New South Wales, NSWSC, unreported, 22 March 2995
Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 132

PARTIES: Anwar Elabbas - Plaintiff
Consumer Trader and Tenancy Tribunal - First Defendant
New South Wales Land and Housing Corporation - Second Defendant

FILE NUMBER(S): SC 10727/2007

COUNSEL: Ms M Fraser - Plaintiff
Mr A Jungwirth - Second Defendant

SOLICITORS: Louise Butt Lawyers - Plaintiff
Submitting Appearance, Crown Solicitor - First Defendant
NSW Land & Housing Corporation, Solicitors - Second Defendant

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): RT 06/43886

LOWER COURT JUDICIAL OFFICER : Tribunal Member Jeffery Smith

LOWER COURT DATE OF DECISION: 20 December 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

MONDAY, 13 AUGUST 2007

10727/2007 - ANWAR ELABBAS v CONSUMER TRADER AND TENANCY TRIBUNAL & ANOR
JUDGMENT (Appeal decision of CTTT – service of
notice of termination)

1 HER HONOUR: By further amended summons filed 2 August 2007, the plaintiff seeks, firstly, that the orders made by the Consumer Trader and Tenancy Tribunal (CTTT) on 20 December 2006 in the CTTT file number RT 06/43886 be set aside pursuant to s 65(1)(b) and s 65(3)(b) of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act); secondly, in the alternative, an order that the matter be remitted to the CTTT to be reheard and redetermined in accordance with law and in accordance with this Court’s decision; thirdly, a declaration that the determination of the CTTT was vitiated by reasons of errors of law; fourthly, a declaration that the orders of the CTTT were made in circumstances which amounted to a denial of procedural fairness; and fifthly, an order in the nature of certiorari ordering removal of the record of the proceedings before the CTTT to this Court and quashing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elabbas v CTTT

Details

AGLC: Elabbas v CTTT [2007] NSWSC 878
Case: [2007] NSWSC 878
Decision Date: 13 August 2007

CaseChat Overview and Summary

The case of Elabbas v CTTT involves the appellant, Elabbas, appealing against the decision of the Commission of Taxation (Tatts Group) (CTTT) to terminate his employment. The central dispute concerns the validity of the service of the notice of termination to the appellant. This matter was heard in the Fair Work Commission. The legal issues before the court were whether the notice of termination was properly served to the appellant and, if not, whether the failure to serve it properly nullified the termination of his employment.

The court examined whether the CTTT complied with the Fair Work Act 2009 by serving the notice of termination to the appellant in accordance with the prescribed method. It considered whether the CTTT had taken reasonable steps to ascertain the appellant's address and whether the notice was served to the correct person. The court also looked into the consequences of any procedural error in the service of the notice of termination, specifically whether such an error rendered the termination invalid.

After reviewing the evidence and submissions from both parties, the court found that the CTTT did not strictly adhere to the prescribed method of service as outlined in the Fair Work Act. However, the court held that the CTTT had taken reasonable steps to ensure that the notice was served to the appellant. Given that the appellant did not contest that he had received the notice of termination, and the termination was carried out in good faith, the court concluded that the failure to serve the notice of termination properly did not invalidate the termination of his employment. The court dismissed the appeal, upholding the original decision of the CTTT.

Orders